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Prof. Douglas M. Branson, the W. Edward Sell Chair in Business Law at the University of Pittsburgh and a permanent Senior Fellow of the University of Melbourne School of Law (Australia), has been on Round Table Group's list of experts since 1996, consulting and testifying in corporate law, corporate governance, and securities regulation cases.

As an expert witness in many high-profile cases[1] and a consultant/lawyer with respect to hundreds of major business transactions and securities offerings, Doug is an authority on the attributes that lawyers should look for when retaining experts. His tips for avoiding impeachment attempts to provide timely guidance on prepping experts prior to depositions and trial.

 

This Top 10 presentation, á la David Letterman, is a valuable checklist for litigators to follow:

10.  Make sure that your experts minimize the number of written drafts by editing their work product electronically whenever possible. In this way, the opposition will be unable to call attention to differences in drafts, changes in wording, and so on in an attempt to waste precious deposition time trying to make your witnesses look bad.

9.    Direct your experts to honestly relate their credentials or experience. Any good lawyer will detect embellishments and portray the witness as untruthful at trial. Knowledgeable, but inexperienced, witnesses will quickly build up experience; exaggeration of their qualifications is unacceptable.

8.    Caution your witnesses to remain calm and cool, regardless of potentially abusive conduct on the part of the opposition. 

7.    Tell your experts that although a sense of humor is acceptable at a deposition, they should never be flippant or sarcastic. Direct them to be pleasant, answer the questions, and go no further; it's not their place to argue with the opposition.

6.    Understand that experts, after repeated provocation, may push back with a show of anger against the opposition. Advise your witnesses to revert to calm and cool as quickly as possible after an outburst. Although the ostensible reason for discovery is to produce information, many lawyers are bullies who pride themselves on their ability to intimidate and embarrass. Occasionally, witnesses have to show their tormenters that they are made of firm stuff.

5.    Clarify that it is not the experts' job to win the case for your side; they are merely cogs in a wheel. Make sure that your witnesses have a well-defined role in the proceedings and that they stick to that role.

4.    Advise your experts that you will steadfastly defend them in the proceedings. Reassure them that you will request recesses when it appears to be necessary or ask that the proceedings end for the day if they seem to be tiring. Make it clear that you will be actively representing them and will stick up for them whenever possible.

3.    Direct your experts to be modest, but to push the envelope on their opinions to the extent possible. Discuss tactics before the deposition.

2.    Coach your experts to be effective teachers when testifying at depositions or in court. They must explain things in clear and simple terms and provide the jury with a comfort level in a field that is otherwise alien to them. This may be their highest and best use in the litigation.

1.    Finally, work with your experts to ensure that they will clearly present their opinions. Advise them to remain strong, stay firm on what they agreed to say, and stick to it. There is nothing worse than a wishy-washy expert witness.

When screening possible experts, attorneys should look for witnesses with firm opinions and insight into how they can aid in the development of the case. If they lack familiarity with an area or sub-area, they should tell you outright, rather than "faking it until they make it."

Using an expert who has done exactly what your case entails (for example, a proxy contest at a large bank or an IPO for a biotech company) may be counterproductive because many parties with personal experience in a given area may not want to be witnesses or experts for your side. You're better off finding somebody who has a good overall experience level and is honest with you, rather than someone who is second rate but "spot on."

Meet Doug Branson

Our Featured Expert, Prof. Branson, graduated cum laude from Northwestern University School of Law and later pursued a Master of Laws at the University of Virginia, where he specialized in corporate and securities law and finished first in his class. After teaching for 22 years at Seattle University, he was recruited by the University of Pittsburgh in 1996. He authored the first U.S. treatise on corporate governance,[2] as well as 10 books on corporate law.[3]  He wrote numerous law review articles for prestigious legal periodicals in the United States, Europe, Singapore, Hong Kong, and Australia. Doug is generally considered to be among the top U.S. scholars on corporate governance and securities regulation.

Branson has served as a visiting professor at Cornell University, the University of Oregon, and Washington University. He has been the Charles Tweedy Distinguished Visiting Professor at the University of Alabama, a Fulbright Scholar at the University of Ghent, and the Paul Hastings Distinguished Professor at the University of Hong Kong. He has lectured in numerous venues around the world. Additionally, he was a U.S. State Department-sponsored consultant on corporate governance and capital markets law four times in Indonesia, twice in Ukraine, and in Slovakia.  

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